Suppose a jury, sitting on a criminal trial, decides that a defendant did the crime, but that the crime is unconstitutional?
Could they only find him not guilty, leaving no precedent? Would they be compelled to find him guilty? Could they instigate some sort of judicial review?
IANAL. A criminal jury has no authority to rule on the constitutionality of the law. They can only determine whether the defendant is guilty or innocent of breaking the existing law. If the defendant is found guilty, but feels the law is unconstitutional, he can then appeal to a higher court.
Juries are supposed to rule on issues of fact, the judge on the issue of law. If a jury finds a law unconstituional and accquits on that basis, it’s called “jury nullification”. Whether or not this is proper for a jury to do is a subject of much debate. Most lawyers seem to feel it isn’t.
IANAL, but what the jury would do is just find the defendent “not guilty” following the principle of jury nullification.
http://www.greenmac.com/eagle/ISSUES/ISSUE23-9/07JuryNullification.html
Disclaimer: Despite working in a law firm, my knowledge is primarily supplemented by Law & Order.
If a jury comes back with a decision of not-guilty and qualifies it that they believe the law unjust/unconstitutional, the judge can overrule that decision.
You guys have most of it. Here’s the deal:
Constitutionality is a question of law. Juries decide factual questions–not legal ones. Therefore, juries do not rule on whether a law is constitutional. There are some exceptions to this rule.
A criminal jury can nullify for any reason. This is a result of the double jeopardy rule. If a criminal jury acquits, the defendant cannot be retried, and the judge cannot set aside the verdict. Therefore, the jury can acquit not only because it finds the law “unconstitutional,” but also because it thinks the law is unfair, or hates the complainant, or likes the defendant.
Juries are not told of their right to nullify.
It doesn’t work in civil cases. No double jeopardy. If the judge thinks the jury misapplied the law to the facts, the judge can enter a judgment that varies from the verdict.
Here are some helpful links:
http://www.personal.psu.edu/faculty/j/p/jph13/JuryNullification.html
http://www.november.org/razorwire/rzold/04/0412.html
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
http://www.free-market.net/spotlight/nullification/
I hope this helps.
No, judges can’t do that. An acquittal is an acquital. Nobody can do anything about it.
Why aren’t they told?
It depends who you ask. Courts discuss nullification (I’m speaking generally here) as a sort of accident or mistake about which we ought to be embarrassed. They dress this up in language about “rights” and “privileges.” Because it is not technically a “right” that juries have, but a “privilege,” they do not have the “right” to hear about it. The practical reason is that juries would probably nullify much more frequently if they knew they could. If that happened, they could “re-write” the law. Read some of the links that are included in my post and Silenus’s post. They talk about and quote some of the court decisions on the subject.
But not all of us! 
–Cliffy
OK, I read the links above. Some of them support the practice and the jury’s need to know. General argument is that: juries can decide matter of facts AND law. And that couple of states require that juries be informed.
If juries have the power to nullify, but not the right to know about it, how can it be called a power? The reasoning seems to be the system can’t be abused if it isn’t used. Then, why bother with the system?
Thank you for the correction.
Ok. Now we are heading out of GQ and into GD. For factual purposes think of it like ESP. You might have ESP and not even know it. If you have it, you have the power. If you are deceived into believing you do not, then you probably won’t exercise it. Most of the links I included were from organizations that favor nullification, so of course they argue in its favor. Most courts and prosecutors are against it, but see it as a necessary result of our criminal justice system.
Does the current regime make sense? Only if you agree with the people who see nullification as a necessary evil. If so, then it makes sense to keep it a secret. If you agree with the sponsors of the sites, the regime will not make sense to you because you will see nullification as a good thing that should be explained to jurors. Why bother with the system? Well I don’t to get off on a rant, but there are those who see nullification as just another reason to modify the constitution. If we did away with double jeopardy, nullification would pretty much disappear. If we did away with search and seizure law, then the exclusionary rule would pretty much disappear. It is for you to decide (maybe in GD) whether you want to live in a country that runs itself that way.
Munch, you may have been thinking of the opposite scenario, in which a judge can overturn a guilty verdict if he thinks the jury was prejudiced, there wasn’t sufficient evidence, or if he feels like it. Every jurisdiction has different regulations about that sort of thing, but no one can overturn a not-guilty verdict.
FWIW, there is a small but growing movement, especially among libertarian-types, to enact “fully informed jury laws” which would require judges to inform juries about their right to nullify.
There is a common law belief that a jury has a duty to do two things:
#1 is performed first. If it is agreed the law is constitutional, fair, moral, just, etc. the jury moves on to #2.
I don’t know how common that belief is, Crafter. While I generally subscribe to it, I’d wager Gfactor and most judges and prosecutors don’t.
–Cliffy
No. And you’ve never seen any such event on Law and Order.
See GFactor’s excellent post at #2.
Can trial judges perform any judicial review of any type of law? If I don’t like my city’s new ordinance that prevents me from, as an example, keeping nine cats in my house, can I go to my local magistrate, Judge Joe Municipal Court, and can he issue a decree invalidating that law or would he just grant me specific relief that would allow me to have a bunch of cats?
Attitudes toward jury nullification depend a lot on whether you agree with what the jury did, obviously.
The most frequent jury nullifications over the last century were probably done by all-white southern juries, which nullified silly laws like those which said that blacks were entitled to vote, to buy houses in any neighborhood, not to be lynched, etc. Would we all approve of those jury nullifications?
If the cat ordinance was unconstitutional, any judge can declare it to be so if the issue comes before the court. In fact, they’d have to; they’re bound to uphold the law, and the Constitution is the highest law in the land. First, however, you’d have to establish standing, which means you’d probably have to wait until the law was actually enforced against you.